The Shar’i Principles for Dealing with Rivers

প্রশ্ন · Question

Are there Shar’iyah principles in respect to dealing with rivers,
whether their origin to their mouth (end -point) are within the
Khilafah "Caliphate" state, or they pass through the state and into
another? Jazaakum Allah Khairan.

উত্তর · Answer

Islam has solutions for every problem that has happened, is
happening or will happen in the future. That is because Allah ﷻ has
perfected this Deen:
ِسْلََمَ دِينًا
تْمَمْتُ عَلَيْكُمْ نِعْمَن ِي وَرَضِيتُ لَكُمُ الإْ
َ
كْمَلْتُ لَكُمْ دِينَكُمْ وَأ
َ
(الْيَوْمَ أ
This day I have perfected for you your religion and completed My
favour upon you and have chosen for you Islam as a Deen" [Al -
Maa’idah: 3].
And He Ta’Aalaa has made it obligatory upon us to refer to the Shar’a
of Allah for judgment in respect to every minor and major issue. He
ﷻ said:

َ
ن يَفْتِنُوكَ عَن بَعْضِ مَا أ
َ
هْوَاءَهُمْ وَاحْذَرْهُمْ أ
َ
نزَلَ الله هُ وَلََ تَتَّبِعْ أ
َ
نِ احْكُم بَيْنَهُم بِمَا أ
َ
(وَأ نزَلَ
الله هُ إِلَيْكَ)
And judge, [O Muhammad], between them by what Allah has
revealed and do not follow their inclinations and beware of them,
lest they tempt you away from some of what Allah has revealed to
you" [Al-Maa’idah: 49].
The word ‘مَا what), as is known, is from the general form (Siyagh Al -
‘Umoom). Consequently, Allah ﷻ has made it obligatory to rule by
Islam in every matter without exception i.e. without taking parts at
the expense of parts:
نزَلَ الله هُ إِلَيْكَ
َ
ن يَفْتِنُوكَ عَن بَعْضِ مَا أ
َ
(وَاحْذَرْهُمْ أ
And beware of them, lest they tempt you away from some of what
Allah has revealed to you".

Therefore, Allah Al -‘Azeez Al -Hakeem has not left a single problem
that people will be exposed to within the life of this world except
that it has been solved by Islam, by a Shar’i text or through Istinbaat
(deduction) in accordance to the Usool Shar’iyah principles. Allah
Ta’Aalaa created us and explained to us that which is suitable and
correct for our affairs as He ﷻ is Al-Lateef Al-Khabeer:
لََ يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللهطِيفُ الْخَبِيُْ
َ
(أ
Does He who created not know, while He is the Subtle, the
Acquainted?" [Al-Mulk: 14].
For that reason, there are indeed Shar’iyah principles for dealing with
rivers, equally whether they are in the Khilafah "Caliphate" state or
they pass through it and into other countries. I will mention some of
these matters in a summarized manner and it will be explained in full
at the time of the establishment of the Khilafah "Caliphate" state,
Inshaa Allah, the state that we supplicate to Allah to be established
soon and Allah is ‘Azeezun Hakeem:
1. The major rivers are public property (Mulkiyah ‘Aammah) and they
fall under two types of the public property. From one angle, they fall
under the collective amenities which are indicated to within his
speech ﷺ:
«ِ، وَالْمَاءِ، وَالنَّارِ
الْمُسْلِمُونَ سَُُِكَاءُ ف ِي ثَلََثٍ: ف ِي الْكَلََ »
"The Muslims are partners in respect to three (matters):
The pasture lands, water and fire" (Narrated by Abu Dawud). They
are also from the types, which by the nature of their formation,
prevent individuals from exclusively taking them into their
possession. That is based on the Hadeeth of Prophet ﷺ:
«مِن ً مُنَاخُ مَنْ سَبَقَ »
"Mina is the resting place of the one who reaches it first" (Narrated
by At -Tirmidhi). Further details can be found in the book, Funds in

the Khilafah "Caliphate" State and in the book, The Economic System
in Islam to be referred to.
2. The Muslims understood from the time of the Prophet ﷺ until our
current time, that the major rivers like the Tigris, Euphrates and the
Nile are public property which nobody can take exclusive ownership
of or exclusively attain the benefit from. The state used to enable the
people to attain the benefit from the major rivers for drinking,
domestic utility, feeding the livestock (which is known as Ash -
Shaffah), to water the agricultural lands (which is called Ash -Shirb)
and for travel and transportation... It used to undertake layout of the
banks and cleaning th e rivers (which is called Bakriy Al -Anhaar) so
that the people could benefit from them... All of that is clear when
reviewing the books of history and Islamic Fiqh... I will mention some
of the Fiqhi texts that guide to the concern that the Muslims had with
the subject of the major rivers so that the benefit from them can be
facilitated:
- The following was mentioned in the book ‘Tuhfat ul-Fuqahaa’ by
Samarqandi (deceased around 540 AH)
“... (In regards to) the major rivers like the Euphrates, the Tigris and
Gihon amongst others, then no one has a right over exclusivity.
Rather, they are the right of the masses. So, everyone who is able to
water his lands from them, then he has the right to do that, just as he
has the right to set up mills, waterwheels and what is similar to that.
That is as long as it does not negatively impact the major river. If it
(i.e. the usage or activity) does have a negative impact upon the
river, then the person is prevented from that. In addition, the digging
i.e. maintenance of the great rivers is a duty upon the authority
(ruler) to undertake from the wealth of the Bait ul-Maal. That is
because their benefit returns to the general public and consequently
the funding of that is found within the public funds and that is the
funds of the Bait ul-Maal...) End.

- The following was mentioned in the Kuwaiti Fiqhiy Encyclopedia:
“Al-Karyu means: Extracting the clay (sediment) from riverbed,
digging and fixing its banks. The funding of the Karyu (maintenance)
and all that the river requires in terms of fixing and rectifying is taken
from the Bait ul -Maal (State Treasury) of the Muslims, because it is
for a general interest (Maslahah ‘Aammah). If there is nothing
available within the Bait ul -Maal (treasury) then the Haakim (ruler)
compels the people to restore and maintain the rivers because their
refraining from that brings about a harm and because it realises the
public interest...
The Karyu (maintenance) of the public rivers like the Nile, Tigris and
Euphrates is the responsibility of the Sultaan (ruler/authority) to be
taken from the Bait ul -Maal. That is because the benefit of the
maintenance is for the Muslims in general and consequently its
funding is from the Bait ul -Maal. That is due to the statement of the
Prophet ﷺ:
«الْخَرَاجُ بِالضَّمَانِ... وَلَوْ خِيفَ مِنْ هَذِهِ الَْنْهَارِ الْغَرَقُ فَعَلََ السُّلْطَانِ إِصْلاَحُ مَسَنَاتِهَا مِنْ
بَيْتِ الْمَال »
"The Kharaaj is by guarantee ... and if submerging is feared from
these rivers then it is the duty of the Sultaan (ruler) to fix or rectify its
dams from the Bait ul-Maal".
- The following was mentioned within the book ‘Darar Al -Hukaam
Fee Sharh Majallat ul-Ahkaam’:
* [(Article 1238) Non-owned public rivers]
Article (1238) – (The public non -owned rivers, and these are the
rivers that have not been included in Muqaasim i.e. in the runnings of
the collective ownership, are also Mubaahah (permissible) like the
Nile, the Tigris, Danube and Tonga Rivers). The public unownable
rivers, and these are the rivers that have not been included in
Muqaasim i.e. in the runnings of the collective ownership, do not fall

under the ownership of anyone. That is like the seas and lakes.
Rather they are Mubaahah (permissible). For that reason, everyone
can seek benefit through them upon the condition that it is not
harmful (or detrimental) to the general public as has been explained
in Article (1254). The person can open up a stream or conduit and run
water from it to his land and irrigate his land, set up a mill, water
scoop and water hole.
If, however, that was harmful (or detrimental) to the ‘Aammah
(public), where the water overflows and ruins the rights of the
people or prevents the movement of boats, then all of the people
have the right to prevent it. This is relation to the rivers. As for the
sea, then benefit is sought from it even if it harms. This is what Al -
Quhustaani stated (clearly) and this issue will be examined in the
explanation of the Articles (1263 and 1264).
In respect to these rivers, all of the people have the right to Ash -
Shaffah (feeding livestock, domestic utility and drinking), whether
that is harmful to the public or unharmful. In regards to the
unownable public rivers like the river Nile that flows in the Egyptian
region, the river Euphrates which flows in Iraq, the Tigris (Dijla)
(which is read with a Kasrah on the Daal and a Fat’hah), the Shatt -ul-
Arab (which is the result of the convergence of the Tigris and
Euphrates), the Danube, a part of which li es in the lands of Romania,
the Tunca River which is also called the Maritsa River which runs
through the town of Edirne, all of these major rivers are not anyone’s
property because the ownership according to Article 1249 occurs
through acquirement and placing the hand over it.
This acquirement and placing one’s hand over it is not possible in
respect to these rivers. As long as these rivers cannot be taken
possession of and acquired then they remain shared amongst the
people according to Article 1234 and the right for all the people to
attain benefit from it is affirmed in accordance to Article 1265 (The

enlightenment and refuting the bewilderment in respect to the
beginnings of Ash-Shurb and Az-Zayla’iy in respect to Ash-Shirb).
[(Article 1265) Everyone has the right to irrigate his lands from non -
ownable rivers].
Article (1265) – Everyone has the right to irrigate his lands from the
unownable rivers and he has the right to open up a stream or conduit
to irrigate his lands and to set up a mill. However, it is stipulated that
others are not harmed. For that reason, if the water overflows and is
harmful to the creation or it interrupts the rivers water completely or
blocks the passage of boast then that is prevented (or forbidden)).
Everyone has the right to Ash -Shirb and the right of Ash -Shaffah in
respect to the unownable rivers which means that he can irrigate his
lands. That is if someone has revived barren land close to the
designated river. He can open up a stream or conduit and let the
water run from the designated river to his land that he has revived.
(The explanation of Al -Majma’ in respect to the Shirb). That is if the
place that the spring has been opened up from is a property of his. It
is also the right of anyone to drink the water from the designated
river, to perform Wudoo’ from it, wash clothes and to open up a
stream or conduit within his owned property or the barren lands
from anew or in increase, to irrigate his lands and he has the right to
set up a mill. This would be like when the spring has three conduits;
he protects it and makes four or five conduits for it (Al -Hindiyah in
the second chapter from the Shirb).
Similarly, if it was a large unownable river close to the vineyards of
someone and the owner of the vineyard wanted to set up irrigation
equipment upon the river to irrigate his vineyards and there was no
harm to others in doing that, then the owners of the vineyards and
irrigation equipment located under his vineyard have no right to
prevent him from doing that through claims of it being against their
consent.

And you are no doubt aware that the Majallat ul -Ahkam was applied
in the Uthmani State i.e. that these mentioned Ahkam (rulings)
above were applied by the state and relied upon (or adopted). All of
that guides to the manner of how the Islamic state dealt with
benefiting from the major rivers...
3. If the major river was located, in its entirety from its beginning to
end within the authority of the Islamic state then there are no
problems in respect benefiting from its waters and travelling in them
in accordance to the Shar’iyah rulings, some of which we have
mentioned above... There is no harm for the river to run in many of
the Wilaayat (provinces) because all of the provinces are within the
authority of the state whilst their division according to specific
geographic borders is only an administr ative matter... If acquiring
benefit of the major rivers requires arrangements being made
between the different Wilaayat then the Khalifah will undertake the
necessary administrative coordinative management that ensures the
attainment of the benefit from the different provinces in the best
and easiest manner...
4. If the regulation of the usage of the major river and benefiting
from its waters requires the state to intervene by putting down
detailed regulation for that, then the state will put in place
administrative systems that will organize the matters related to
irrigation, movement, transport and other than that... In light of the
current material technological advancements, then it is most
probable that it will be the state that undertakes the organization of
the irrigation, delivery of water to the houses a nd farms, the travel
movement and transportation within the rivers... The state can place
fees for the usages and benefits acquired from them upon the
condition that the profits resulting from that return to the Bait ul -
Maal of the Muslims within the public property revenues section.

5. If parts of the major river flow outside of the authority of the
Islamic state, then the state will convene, if necessary, bilateral
agreements or treaties with the state that it is related to, in
accordance to the (dictates of the) Ahkam Ash -Shar’iyah. That is in
order to organize the utilization of the river without affecting the
interests of the Islamic state detrimentally and it is done in
accordance to the Ahkam Ash -Shar’iyah related to the public
properties... If an act of aggression or hostility o ccurs from another
state by preventing the flow of water of the major river from
reaching the Islamic state or by its exploitation in a manner that
harms the interests of the Muslims, then the state will take the
political, economic and military measures that enable it to remove
the harm brought about by the other state, even if the matter
reaches the point of war against the aggressing state to take back the
Haqq (right).
6. I will draw attention to the point that throughout history, the
states that are upon the shores of the major rivers did not used to
prevent each other from benefiting from the waters of the major
river (the international river). Indeed, all of the states located upon
the rivers benefited from the rivers without that being problematic...
Problems related to the international rivers did not arise until the age
of western colonialism which took them as a means for colonialism
and exerting political and economic pressures upon other states.
7. The right in respect to the public property belongs to the subjects
of the Islamic state and not to other states. As such, the state
imposes fees upon other states’ usage of the rivers located under the
authority of the Islamic state. It can also sell them its water,
electricity that results from the water and what is similar to that ... It
will then place the profits realized from that within the Bait ul -Maal
to spend upon that which the Ahkam Ash-Shar’iyah has permitted.

8. In respect to the organizational procedures that the state puts into
place for the beneficial utilization of the major rivers; dividing its
waters and organizing movement or transportation within them, it
pays attention and consideration to the rivers not drying up, the flow
being interrupted or impeded, the pollution of its waters or to any
other harm that can befall them. Just as it makes effort directly to
remove any harm that happens unintentionally... It adopts water
policies characterized by justice in respect to the division of water
shares (or quotas) and at the same time it is characterized in respect
to preserving these water sources in the best manner possible ... All
of this is not detached from the economic policies and the general
environment that the state sets.
9. Attached to what has been mentioned previously is the regulation
of the state of the benefit from the fishing treasure in the major
rivers and enabling the people to fish and so on...
I hope that this summarized answer is sufficient... and its completed
explanation will happen at its time Inshaa Allah.
12th Safar 1438 AH
Corresponding to 12/11/2016 CE